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Gun Forfeiture and the Defendant Who ôRemarked How Easy It Would Be for Someone to Shoot the Pres
The Volokh Conspiracy ^ | 23 May, 2012 | Eugene Volokh

Posted on 05/25/2012 5:17:16 AM PDT by marktwain

From today’s State v. Brek (N.J. Super. Ct. App. Div. May 22, 2012):

In October 2009, defendant worked as a security guard for a private company at Newark Liberty International Airport. Vice–President Biden had recently flown into the airport, and President Obama was scheduled to arrive the next day on Air Force One.

Defendant and two other individuals who worked at the airport were standing at a lunch truck near the runway where the President’s plane was scheduled to land, when defendant remarked how easy it would be for someone to shoot the President. He pointed out that anyone with a gun could fire at the President, as he left his plane, from surrounding locations, such as defendant’s work post, the roofs of nearby buildings or the fenced area enclosing the runway. The men defendant spoke to were sufficiently alarmed by his statements to report them immediately to the Port Authority police.

Within hours, law enforcement personnel questioned defendant and, with his consent, searched his residence. There, law enforcement discovered and seized about seventy weapons, including rifles, handguns, hunting knives, crossbow and arrow sets, hollow point bullets and other ammunition, as well as permits and storage cases. A record check revealed that one of the guns had been stolen from Alabama. Defendant was arrested and charged with terroristic threats against the President, N.J.S.A. 2C:12–3b, receiving stolen property, N.J.S.A. 2C:20–7a, and unlawful possession of hollow point bullets, N.J.S.A. 2C:39–3f(1). A restraining order was issued barring defendant from any contact with the President or his family.

Defendant is from a family of hunters and had an extensive and valuable gun collection. With the exception of one gun which, unknown to defendant, was reportedly stolen from Alabama, defendant legally possessed the other guns and had the appropriate firearms permits. No weapon was found in defendant’s possession when he was arrested at his place of employment….

On November 12, 2009, defendant pled guilty to two counts of disorderly persons harassment against the two individuals who heard defendant’s conjectures at the lunch truck, N.J.S.A. 2C:33–4. Both weapons charges were dismissed. At that time defendant requested the return of all property seized from his home, but the prosecutor refused.

On July 12, 2010, defendant moved before the trial judge who had taken his guilty plea for an order compelling the State to return his property, except for the hollow point bullets and stolen rifle. The State filed a written opposition to the motion, which failed to cite any statutory, regulatory or precedential authority. At the hearing on the motion, the assistant prosecutor “concede[d] that after thorough investigation by the federal authorities, the Port Authority police and my office, that we did not see this as a major threat.” The prosecutor also acknowledged the two mental health evaluations that defendant had in prison, which “the State concede[d] he passed.” Nonetheless, based upon “the whole totality of the circumstances,” the State opposed the return of the weapons. In denying defendant’s motion, the trial judge, without providing any legal basis, ruled:

[W]e live in a very different time [since September 11, 2001] and in a very different world; we don’t engage in certain conduct involving words or acts that can be interpreted as threats to our elected officials, threats to our citizens, threats to the health, safety and welfare of everyone. And that phrase, or concept, the public health, safety and welfare, I think trumps everything…. Mr. Brek’s character is not at issue. At no time has the State — at least to my knowledge — brought … [Mr.] Brek’s character into this…. I believe that the public health, safety and welfare of our citizens does come into play here, and accordingly, I am going to deny Mr. Brek’s application for the return of his weapons.

This appeal followed.

Guess how the New Jersey Superior Court Appellate Division ruled, and then read on.

It is not disputed that the property seized by the State that defendant requests be returned was lawfully acquired, that plaintiff had obtained the necessary permits to purchase the firearms, and that defendant’s possession of the firearms and other weapons in his residence was lawful. Thus, the State has alleged no facts before the trial judge or on appeal that would give rise to a claim of prima facie forfeiture. N.J.S.A. 2C:64–1a(1). Consequently, the State could only seek derivative forfeiture of defendant’s property, for which it was required to bring a civil action within ninety days of its seizure. N.J.S.A. 2C:64–3a.

Not only has the State failed to file a timely civil action, it has provided no extenuating circumstances to request an equitable extension of time. More importantly, the State does not make a claim or allege any facts to demonstrate that the property seized meets the statutory definition of derivative contraband, N.J.S.A. 2C:64–1a. Nowhere in the record does the State allege that the property at issue was used in furtherance of a crime, as an integral part of an illegal activity, or as the proceeds of illegal activity.

Instead, the State argued that forfeiture was appropriate because defendant’s possession of hollow point bullets and a stolen rifle had shown that he was a threat to the public health, safety and welfare. The State compared the forfeiture of defendant’s property to the revocation or denial of a firearms permit if a person is found to be a threat. N.J.S.A. 2C:58–3. The trial judge, without referencing any statute, also used this analogy. We reject this argument as inapposite. This action does not involve the application for or revocation of a firearms permit under N.J.S.A. 2C:58–3, which is based upon a different statutory scheme than the Forfeiture Act. Furthermore, the property held by the State consists of many items, such as knives and bows and arrows, not covered by the firearms law.

Based upon the record before us, we cannot uphold the trial judge’s finding that the State had the right to retain defendant’s property as it was not based upon the required procedure in the Forfeiture Statute. Under that law, the State was required to file a civil action for forfeiture within ninety days of the seizure of the property. N.J.S.A. 2C:64–3a. The State neither made the requisite filing nor proffered extenuating circumstances for an extension of that time limitation. Even when requesting a remand for a forfeiture hearing, the State did not contend that requisite facts existed to prove the elements for prima facie or derivative contraband under N.J.S.A. 2C:64–1a. Accordingly, as the State had not moved timely under the Forfeiture Act, defendant is entitled to have his property returned to him.



TOPICS: Constitution/Conservatism; Government; News/Current Events; US: New Jersey
KEYWORDS: banglist; constitution; gun; nj
Almost the definition of tyranny, except he finally does get most of his stuff back.
1 posted on 05/25/2012 5:17:23 AM PDT by marktwain
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To: marktwain

I GOTTA move the hell out of this state.


2 posted on 05/25/2012 5:27:18 AM PDT by rightwingextremist1776
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To: marktwain
...seized about seventy weapons, including rifles, handguns, hunting knives, crossbow and arrow sets, hollow point bullets and other ammunition...

I wonder how many actual firearms were involved since they tossed in arrows, hollow points, and other ammo as part of the 70 seized "weapons"?

Did they count each bullet and arrow so the could get the fear mongering count of 70?

3 posted on 05/25/2012 5:27:34 AM PDT by CPOSharky (zero slogan: Expect less, pay more. (apologies to Target))
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To: marktwain

It is a shame he pled guilty to the bogus harassment charges. He probabaly did so to avoid further expense and the remote possibility of being found guilty. He probably admitted enough during the plea allocution to establish there was probabale cause for the arrest. That likely destroyed his false arrest claim.

It would be nice if there was insurance to pay defense costs for innocent people who are placed in this type of situation


4 posted on 05/25/2012 5:31:14 AM PDT by John Galt's cousin (Principled Conservatism NOW! * * * * * * * * * * Repeal the 17th Amendment!)
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To: marktwain

Spelled checked. (Gotta remember:probable = pro-bable)

It is a shame he pled guilty to the bogus harassment charges. He probably did so to avoid further expense and the remote possibility of being found guilty. He probably admitted enough during the plea allocution to establish there was probable cause for the arrest. That likely destroyed his false arrest claim.

It would be nice if there was insurance to pay defense costs for innocent people who are placed in this type of situation


5 posted on 05/25/2012 5:37:49 AM PDT by John Galt's cousin (Principled Conservatism NOW! * * * * * * * * * * Repeal the 17th Amendment!)
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To: marktwain

All things considered, a very lucky guy. It is my understanding that it is illegal to posses hollow point bullets in New Jersey. Correct? That coupled with the possession of a stolen gun could have turned out much worse for him.


6 posted on 05/25/2012 5:41:15 AM PDT by PowderMonkey (WILL WORK FOR AMMO)
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To: marktwain
The worst thing in the world would be for anyone to assassinate this guy or even attempt to, or discuss it. It would make him a martyr. Besides, this is America and we don't do things that way here.

If the electorate are dumb enough and ignorant enough to elect a Marxist Muslim radical who thinks they pay too little for gasoline and energy, eat too well, are too warm in winter and too cool in summer and that they live in a country which is the cultural and moral equivalent of some primitive living in a third world hovel, a man with clear ideological ties to Muslims, so be it.

The REAL problem is not Obama. Its the idiots who put him in office and who continue to support him.

7 posted on 05/25/2012 5:58:25 AM PDT by ZULU (Non Nobis Domine Non Nobis Sed Nomini Tuo Da Gloriam.)
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To: PowderMonkey

Yes, hollow points are illegal in New Jersey, as so many OTHER things are.

The biggest industry in New Jersey is the Law Courts and the best way the legislators here can make sure they generate as much business for themselves as possible (a LOT of them are attorneys) is for them to generate as many idiotic laws as possible.


8 posted on 05/25/2012 6:04:41 AM PDT by ZULU (Non Nobis Domine Non Nobis Sed Nomini Tuo Da Gloriam.)
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To: PowderMonkey

The whole thing almost makes me laugh. When I reported a co-worker to the Secret Service in 2004 for making what I thought was an overt threat to President Bush, who was coming to town the next day (he said “Did you hear President Bush is coming to town? I bought a gun for the occasion”), the Secret Service did NOTHING, but they did follow up on a post I made here on FR about the incident, which took weeks for them to subpoena the records from JimRob to find out who I was.

This guy didn’t even come close to making the same kind of threat, yet they called out the dogs on him immediately.


9 posted on 05/25/2012 6:09:35 AM PDT by RightFighter (It was all for nothing.)
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To: PowderMonkey

A guy I knew somewhat brought me a Saturday night special ( a BRYCO .25)about 15 years ago, and asked if I could fix it. I did and at considerable expense and time to myself. Told him to come get it and gave him a bill for $35.00. He said no, he’d found it on the side of the road and didn’t want to pay that much. Red lights went off in my head, so I took it to the sheriff in my county who found it was stolen in WV, used in a murder in Pittsburgh, and I got arrested. Took a while, but everything was thrown out, no record and I’m still out my time and money.


10 posted on 05/25/2012 6:16:10 AM PDT by Safetgiver
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To: marktwain

What did he do? Write a book about how to kill Bush? Talking about lax security doesn’t seem to rank up there with threats.


11 posted on 05/25/2012 6:18:52 AM PDT by Safetgiver
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To: rightwingextremist1776

Or stand and fight... This is a cancer that is metastasizing throughout our body politic. It doesn’t end at NJ’s border any more than it does at California’s or Illinois’ borders.


12 posted on 05/25/2012 6:31:20 AM PDT by Dead Corpse (Steampunk- Yesterday's Tomorrow, Today)
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To: ZULU

The country is ruled by Ivy League Lawyers from both parties, who pass 1000’s of laws every year to maintain their incumbency and mine $’s from the entertainment addicted, dumber & dumnber, peons.


13 posted on 05/25/2012 6:31:49 AM PDT by wrencher
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To: marktwain

NEVER consent to a search of anything by anyone, without first talking to a lawyer.


14 posted on 05/25/2012 6:34:10 AM PDT by Atlas Sneezed (Hold My Beer and Watch This!)
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To: marktwain

Sounds like he pointed out a security flaw, someone got embarrassed, and took it out on him. Bottom line: Don’t criticize the system or it will come for you.


15 posted on 05/25/2012 6:45:54 AM PDT by Boomer One
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To: wrencher

It should be unconstitutional for a Lawyer, an Officer of the Court, to be either a legislator or a Chief Executive.

Its a clear violation of the Separation of powers concept.


16 posted on 05/25/2012 6:46:58 AM PDT by ZULU (Non Nobis Domine Non Nobis Sed Nomini Tuo Da Gloriam.)
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To: ZULU; All
Yes, hollow points are illegal in New Jersey, as so many OTHER things are.

It is NOT illegal to own/transport hollow point ammo in NJ:

http://www.state.nj.us/njsp/about/fire_hollow.html

17 posted on 05/25/2012 6:55:17 AM PDT by Victor (If an expert says it can't be done, get another expert." -David Ben-Gurion, the first Prime Minister)
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To: Safetgiver
What did he do? Write a book about how to kill Bush? Talking about lax security doesn’t seem to rank up there with threats.

Exactly - he mentioned an obvious shortcoming and should be praised vs. excoriated.

18 posted on 05/25/2012 7:02:57 AM PDT by trebb ("If a man will not work, he should not eat" From 2 Thes 3)
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To: marktwain

One hopes that the Secret Service would think of and voice the exact same comments that this guard made.

Aren’t security people supposed to be thinking about risk?


19 posted on 05/25/2012 7:04:57 AM PDT by SampleMan (Feral Humans are the refuse of socialism.)
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To: CPOSharky

Probably included such weapons as, Hammer, phillips head screw driver, hand saw, large rock yard ornament, etc...


20 posted on 05/25/2012 7:12:39 AM PDT by moehoward
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To: ZULU
The REAL problem is not Obama. Its the idiots who put him in office and who continue to support him.

I disagree. The population can only make decisions on the information that they have. The MSM is completely committed to the election of Obama. They squandered every last bit of credibility in order to elect him, and are rapidly developing the reputation of being the equivalent of Pravda in the United States.

The real battle is to bring enough new media into being so that most of the population gets more information than the propaganda the MSM puts out.

21 posted on 05/25/2012 7:12:54 AM PDT by marktwain
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To: trebb

Sometimes security thru obscurity is the only security that works. Those managing that security take a dim view of someone blowing the Emperor’s open secret.


22 posted on 05/25/2012 7:19:02 AM PDT by ctdonath2 (Cloud storage? Dropbox rocks! Sign up at http://db.tt/nQqWGd3 for 2GB free (and I get more too).)
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To: marktwain

When the media presents such blatantly inaccurate data so OBVIOUSLY in conflict with what the average intelligent person SHOULD recognize with his/her own eyes, where does the blame lie?

Polls indicate Romney and Obama are neck in neck.

Since Obama took over, MORE people have lost their jobs, MORE buisnesses have gone under, the cost of food has risen astronomically and so has the cost of energy and gasoline.

What you say about the mainstream media is accurate, but I can’t understand why conservatives don’t do the same things liberals have done to try and monopolize public opinion by controlling more media outlets. FOX IS Fair and Balanced. They DO give both sides a chance. But that is HARDLY adequateluy considering the constant barrage of biased, inaccurate and outright FALSE information being fed to the public by all the other main media organs.

We need to do better than FOX.


23 posted on 05/25/2012 7:51:09 AM PDT by ZULU (Non Nobis Domine Non Nobis Sed Nomini Tuo Da Gloriam.)
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To: marktwain
In October 2009, defendant worked as a security guard for a private company at Newark Liberty International Airport. [...] Defendant and two other individuals who worked at the airport were standing at a lunch truck near the runway where the President’s plane was scheduled to land, when defendant remarked how easy it would be for someone to shoot the President. He pointed out that anyone with a gun could fire at the President, as he left his plane, from surrounding locations, such as defendant’s work post, the roofs of nearby buildings or the fenced area enclosing the runway. The men defendant spoke to were sufficiently alarmed by his statements to report them immediately to the Port Authority police.

So, he got in trouble (and likely fired, though I don't see that in the article) for, as a Security Guard, thinking about security issues?

24 posted on 05/25/2012 7:59:48 AM PDT by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: Victor

“2C:39-3. Prohibited Weapons and Devices.

a.Destructive devices. Any person who knowingly has in his possession any destructive device is guilty of a crime of the third degree.

b.Sawed-off shotguns. Any person who knowingly has in his possession any sawed-off shotgun is guilty of a crime of the third degree.

c.Silencers. Any person who knowingly has in his possession any firearm silencer is guilty of a crime of the fourth degree.

d.Defaced firearms. Any person who knowingly has in his possession any firearm which has been defaced, except an antique firearm or an antique handgun, is guilty of a crime of the fourth degree.

e.Certain weapons. Any person who knowingly has in his possession any gravity knife, switchblade knife, dagger, dirk, stiletto, billy, blackjack, metal knuckle, sandclub, slingshot, cestus or similar leather band studded with metal filings or razor blades imbedded in wood, ballistic knife, without any explainable lawful purpose, is guilty of a crime of the fourth degree.

f.Dum-dum or body armor penetrating bullets. (1) Any person, other than a law enforcement officer or persons engaged in activities pursuant to subsection f. of N.J.S.2C:39-6, who knowingly has in his possession any hollow nose or dum-dum bullet, or (2) any person, other than a collector of firearms or ammunition as curios or relics as defined in Title 18, United States Code, section 921 (a) (13) and has in his possession a valid Collector of Curios and Relics License issued by the Bureau of Alcohol, Tobacco and Firearms, who knowingly has in his possession any body armor breaching or penetrating ammunition, which means: (a) ammunition primarily designed for use in a handgun, and (b) which is comprised of a bullet whose core or jacket, if the jacket is thicker than.025 of an inch, is made of tungsten carbide, or hard bronze, or other material which is harder than a rating of 72 or greater on the Rockwell B. Hardness Scale, and (c) is therefore capable of breaching or penetrating body armor, is guilty of a crime of the fourth degree. For purposes of this section, a collector may possess not more than three examples of each distinctive variation of the ammunition described above. A distinctive variation includes a different head stamp, composition, design, or color.

g.Exceptions. (1) Nothing in subsection a., b., c., d., e., f., j. or k. of this section shall apply to any member of the Armed Forces of the United States or the National Guard, or except as otherwise provided, to any law enforcement officer while actually on duty or traveling to or from an authorized place of duty, provided that his possession of the prohibited weapon or device has been duly authorized under the applicable laws, regulations or military or law enforcement orders. Nothing in subsection h. of this section shall apply to any law enforcement officer who is exempted from the provisions of that subsection by the Attorney General. Nothing in this section shall apply to the possession of any weapon or device by a law enforcement officer who has confiscated, seized or otherwise taken possession of said weapon or device as evidence of the commission of a crime or because he believed it to be possessed illegally by the person from whom it was taken, provided that said law enforcement officer promptly notifies his superiors of his possession of such prohibited weapon or device.

(2) a. Nothing in subsection f. (1) shall be construed to prevent a person from keeping such ammunition at his dwelling, premises or other land owned or possessed by him, or from carrying such ammunition from the place of purchase to said dwelling or land, nor shall subsection f. (1) be construed to prevent any licensed retail or wholesale firearms dealer from possessing such ammunition at its licensed premises, provided that the seller of any such ammunition shall maintain a record of the name, age and place of residence of any purchaser who is not a licensed dealer, together with the date of sale and quantity of ammunition sold.”

???????????????????????????????


25 posted on 05/25/2012 8:00:05 AM PDT by ZULU (Non Nobis Domine Non Nobis Sed Nomini Tuo Da Gloriam.)
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To: marktwain
defendant remarked how easy it would be for someone to shoot the President. He pointed out that anyone with a gun could fire at the President, as he left his plane, from surrounding locations, such as defendant’s work post, the roofs of nearby buildings or the fenced area enclosing the runway. The men defendant spoke to were sufficiently alarmed by his statements to report them immediately to the Port Authority police.

That's it. Can I Haz Josh Sugarman arrested 2?

26 posted on 05/25/2012 8:40:06 AM PDT by Oztrich Boy
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To: marktwain

The guy had a lousy lawyer. He was working as a security guard and pointed out a weakness in security. He was doing his job.


27 posted on 05/25/2012 9:17:08 AM PDT by Kevmo (SUCINOFRAGOPWIASS: Shut Up, CINOs; Free Republic Aint a GOP Website. It's A Socon Site.)
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To: Safetgiver

No good deed goes unpunished. The moral of your story is, don’t call the police unless your life is in immediate danger. Keep a low profile and try to live unnoticed. The less interaction you have with authorities, the better off you’ll be. Sounds third-worldish, doesn’t it?


28 posted on 05/25/2012 11:12:39 AM PDT by TexasRepublic (Socialism is the gospel of envy and the religion of thieves)
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